Himachal Pradesh High Court
Fao No. 451/2012 vs Sh. Pawan Kumar And Others on 16 December, 2016
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO (MVA) No. 451 of 2012 a/w connected matters.
Date of decision: 16th December, 2016.
.
1. FAO No. 451/2012.
National Insurance Company Ltd. .....Appellant Versus Sh. Pawan Kumar and others .....Respondents.
2. FAO No. 98/2013.
National Insurance Company Ltd. .....Appellant of Versus Smt. Gayatri Devi and others.....Respondents.
3. FAO No. 99/2013.
National Insurance Company Ltd. .....Appellant rt Versus Smt. Neelam Kumari and others .....Respondents.
4. FAO No. 100/2013.
National Insurance Company Ltd. .....Appellant Versus Smt. Sarla Devi and others .....Respondents.
5. FAO No. 101/2013.
National Insurance Company Ltd. .....Appellant Versus Bikku @ Priya Darshan and others .....Respondents.
6. FAO No. 198/2013.
National Insurance Company Ltd. .....Appellant Versus Sh. Amar Singh and others .....Respondents.
7. FAO No. 4049/2013.
National Insurance Company Ltd. .....Appellant Versus Smt. Nirmla Devi and others .....Respondents.
8. FAO No. 4050/2013.
National Insurance Company Ltd. .....Appellant Versus Smt. Santosh Kumari and others .....Respondents.
9. FAO No. 4051/2013.
National Insurance Company Ltd. .....Appellant ::: Downloaded on - 15/04/2017 21:45:57 :::HCHP -2- Versus Smt. Simro Devi and others .....Respondents.
10. FAO No. 4191/2013.
National Insurance Company Ltd. .....Appellant Versus .
Smt. Sonu Kumari and others .....Respondents.
11. FAO No. 4192/2013.
National Insurance Company Ltd. .....Appellant Versus Smt. Sunita Devi and others .....Respondents.
Coram:
of The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
Whether approved for reporting ?1 Yes For the appellant(s):
rt Mr. Ashwani K. Sharma, Sr. Advocate with Mr. Jeevan Kumar, Advocate.
For the respondent(s): Ms. Anjali Soni Verma, Advocate, for the claimants in respective appeals.
Mr. Rita Goswami, Advocate, for owner and driver in respective appeals.
_________________________________________________ Mansoor Ahmad Mir, Chief Justice, (Oral).
These appeals are outcome of one motor vehicle accident allegedly caused by driver, namely, Shakti Chand, while driving vehicle bus bearing registration No. HP-39-5281, rashly and negligently on 19.2.2009. Thus, I deem it proper to determine all these appeals by this common judgment.1
Whether the reporters of Local Papers may be allowed to see the judgment ?.
::: Downloaded on - 15/04/2017 21:45:57 :::HCHP -3-2. Claimants had filed separate claim petitions before Motor Accident Claims Tribunal-II Kangra at Dharamshala, for short "the Tribunal" for the grant of .
compensation, as per the break-ups given in their respective claim petitions. The claim petitions were resisted by all the respondents and issues came to be framed by the Tribunal in all the claim petitions. I deem of it proper to reproduce one set of issues framed in MACP No. 26-K/2009, subject matter of FAO No. 451 rt of 2012 herein.
1. Whether on account of rash and negligent driving by respondent No. 2 on 19.2.2009 caused the death of deceased Subham Chaudhary? OPP
2. If issue No. 1 is proved in affirmative to what amount of compensation the petitioners are entitled and from whom? OPP
3. Whether the offending vehicle bearing registration No.HP-39-5281 as over loaded and violated the terms and conditions of the insurance policy? OPR
4. Whether the deceased was travelling in the vehicle No. HP-39-5281 as gratuitous passenger? OPR.
5. Whether the respondent No. 2 was not holding valid and effective driving licence at the time of accident? OPR
6. Whether respondent No. 1 was not having valid route permit, registration certificate, and fitness certificate?
7. Whether the accident is the result of mechanical defect? OPR
8. Relief.
::: Downloaded on - 15/04/2017 21:45:57 :::HCHP -4-3. Compensation came to be granted by the Tribunal, in favour of the claimants in different claim .
petitions vide separate awards and insurer was saddled with the liability, hereinafter referred to as "the impugned awards", for short. The details of compensation awarded in the claim petitions vide of impugned awards are as under:-
Sr. Claim petition No/title Decided Compensation Subject No. rt on awarded matter of appeal.
1. MACP No.26-K/2009 titled 31.8.2012 Rs.1,80,000/- FAO(MVA) Pawan Kumar and alongwith interest No. 451 of another versus Ajay @7.5% per annum. 2012.
Goshwami and others
2. MACP No.34-K/II-2009 12.12.2012 Rs.3,48,800/- FAO(MVA) titled Smt. Gaytri Devi alongwith interest No. 98 of and another versus @9% per annum. 2013. Shakti Chand and others
3. MACP No.60-K/II-2009 12.12.2012 Rs.10,945/-alongwith FAO(MVA) titled Neelam Kumari interest @9% per No. 99 of versus Shakti Chand and annum 2013. others
4. MACP No.33-K/II-2009 12.12.2012 Rs.2,33,600/-alongwith FAO(MVA) titled Smt. Sarla Devi interest @9% per No. 100 of versus Shakti Chand and annum 2013. others
5. MACP No.61-K/II-2009 12.12.2012 Rs.1,18,670/-alongwith FAO(MVA) titled Bikku @ Priya interest @9% per No. 101 of Darshan versus Shakti annum 2013. Chand and others
6. MACP No.32-K/2009 titled 30.11.2012. Rs.1,04,000/- FAO(MVA) Amar Singh versus Ajay alongwith interest No. 198 of Goswami and others @7.5% per annum 2013.
7. MACP No.28-K/2009 titled 15.1.2013 Rs.3,08,000/-alongwith FAO(MVA) Nirmala Devi and others interest @7.5% per No. 4049 versus Ajay Goshwami annum. of 2013. and others
8. MACP No.26-K/2009 titled 15.1.2013 Rs.6,32,000/-alongwith FAO(MVA) Santoh Kumari and interest @7.5% per No. 4054 others versus Ajay annum of 2013. Goshwami and others
9. MACP No.29-K/2009 titled 15.1.2013. Rs.1,88,000/-alongwith FAO(MVA) Simro Devi and another interest @7.5% per No. 4051 versus Ajay Goshwami annum of 2013. and others
10. MACP No.34-K/2009 titled 29.7.2013 Rs.75,500/-alongwith FAO(MVA) Sonu Kumari versus Ajay interest @7.5% per No. 4191 Goswami and others annum of 2013.
11. MACP No.38-K/2009 titled 29.7.2013 Rs.34,000/-alongwith FAO(MVA) Sunita Devi versus Ajay interest @7.5% per No. 4192 ::: Downloaded on - 15/04/2017 21:45:57 :::HCHP -5- Goswami and others annum. of 2013.
4. Claimants, owner-insured and driver have .
not questioned the impugned awards on any ground.
Thus, the same have attained finality so far as they relate to them.
5. The appellant/ insurer has questioned the of impugned awards on the following grounds;
(i) That
rt the compensation awarded is
excessive;
(ii) That it is case of overloading,
(iii) That the driver was not having a valid and effective diving licence at the time of accident.
6. All the three grounds are not well founded and sustainable, for the following reasons.
7. I have gone through all the impugned awards. The amount awarded is rather meager.
Unfortunately, the claimants have not questioned the same and even have not prayed for the enhancement, are maintained. However, the Tribunal has fallen in an error in awarding interest at a higher rate in four claim ::: Downloaded on - 15/04/2017 21:45:57 :::HCHP -6- petitions, subject matter of FAOs No. 98 of 2013, 99 of 2013, 100 of 2013 and 101 of 2013. The interest was to be awarded at the rate of 7.5% per annum, for the .
following reasons.
8. It is a beaten law of the land that the rate of interest should be awarded as per the prevailing rates, in view of the judgments rendered by the Apex Court in cases of titled as United India Insurance Co. Ltd. and others versus Patricia Jean Mahajan and others, reported in (2002) 6 rt SCC 281; Satosh Devi versus National Insurance Company Ltd. and others, reported in 2012 AIR SCW 2892; Amrit Bhanu Shali and others versus National Insurance Company Limited and others reported in (2012) 11 SCC 738; Smt. Savita versus Binder Singh & others, reported in 2014, AIR SCW 2053; Kalpanaraj & others versus Tamil Nadu State Transport Corpn., reported in 2014 AIR SCW 2982; Amresh Kumari versus Niranjan Lal Jagdish Pd. Jain and others, reported in (2015) 4 SCC 433, and Mohinder Kaur and others versus Hira Nand Sindhi (Ghoriwala) and another, reported in (2015) 4 SCC 434, and discussed by this Court in a batch of FAOs, FAO No. 256 of 2010, titled as Oriental Insurance Company versus Smt. Indiro and others, being the lead case, decided on 19.06.2015.
::: Downloaded on - 15/04/2017 21:45:57 :::HCHP -7-9. Accordingly, interest @7.5% per annum is awarded from the date of claim petitions till realization of the amount in four appeals, referred to supra.
.
10. It is stated that the insurer has not questioned the impugned awards in other claim petitions for the reasons that the amount awarded was meager and in terms of the mandate of Motor Vehicles of Act, for short "the Act" the appeal was not competent. It is worthwhile to mention herein that it is not the case of rt the insurer that the claim petitions were filed more than the risk covered. Seating capacity of the offending vehicle was 29 and the claim petitions have been filed for the compensation, viz-a-viz risk covered.
11. The Tribunal has rightly directed the insurer to satisfy the awards. Even otherwise, in case more claim petitions would have been filed, insurer had to satisfy the highest award. The Tribunal has awarded the amount relating to 29 claim petitions. Accordingly, this ground is also turned down.
12. Learned counsel for the insurer has argued that the interrogatories were sent to the District Judge, Mathura, for doing the needful, who has sent the report ::: Downloaded on - 15/04/2017 21:45:57 :::HCHP -8- to the Tribunal, which does disclose that the original driving licence was not issued in the name of driver Shakti Chand and that has not been taken into .
consideration by the Tribunal. The driving licence is on record and it is recorded by the Tribunal that the original licence was not issued in favour of the driver aforesaid. But unfortunately, insurer has not taken any of steps to prove the said report. However, be that as it may, the admitted case of the parties is that the driving rt licence was renewed in Kangra at Dharamshala and renewal is not fake. It was for the insurer to prove that the owner-insured was knowing that the licence was fake and that the insurer has committed willful breach in terms of National Insurance Co. Ltd. versus Swaran Singh and others, reported in AIR 2004 Supreme Court 1531. It is apt to reproduce relevant portion of para 105 of the judgment herein:
"105. .....................
(i) .........................
(ii) ........................
(iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of Section 149, have to be proved to have been committed by the insured for ::: Downloaded on - 15/04/2017 21:45:57 :::HCHP -9- avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards .
insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view of to avoid their liability, must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of rt the vehicle; the burden of proof wherefore would be on them.
(v).........................
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149 (2) of the Act."
13. It would also be profitable to reproduce para 10 of the judgment rendered by the Apex Court in Pepsu Road Transport Corporation versus National ::: Downloaded on - 15/04/2017 21:45:57 :::HCHP
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Insurance Company, reported in (2013) 10 Supreme Court Cases 217, herein:
"10. In a claim for compensation, it is certainly .
open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is of the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid rt driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver.
However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is ::: Downloaded on - 15/04/2017 21:45:57 :::HCHP
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explained in Swaran Singh case. If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, .
in such circumstances, the Insurance Company is not liable for the compensation."
14. Viewed thus, this ground also fails and is accordingly turned down.
of
15. Factum of insurance is not in dispute. Thus, the insurer has to satisfy the award.
rt
16. Having glance of the above discussion, all the appeals are disposed of, impugned awards, except four, are upheld and the impugned awards so far the same relate to FAOs No. 98, 99, 100 and 101 of 2013, are modified, as indicated hereinabove.
17. The insurer is directed to deposit the amount alongwith interest @ 7.5% within eight weeks from today in the Registry. The Registry, on deposit, is directed to release the amount in favour of the claimants, strictly in terms of the conditions contained in the impugned awards, through payees' account cheque, or by depositing the same in their bank ::: Downloaded on - 15/04/2017 21:45:57 :::HCHP
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accounts, after proper verification. Excess amount , if any be refunded to the appellant/insurer accordingly.
18. Send down the record forthwith, after placing a .
copy of this judgment.
December 16, 2016. (Mansoor Ahmad Mir) (cm Thakur) Chief Justice.
of rt ::: Downloaded on - 15/04/2017 21:45:57 :::HCHP